Boatman, In re

• Decision Date: 14 March 1968
• Docket Number: No. 39752,39752
• Citation: 438 P.2d 600,73 Wn.2d 364
• Court: Washington Supreme Court
• Parties: In the Matter of the Welfare of Sandra Lee BOATMAN, a minor. Carl Frank BOATMAN, Lewis H. Mattix and Bernice Mattix, Petitioners, v. The STATE of Washington, Respondent.

Page 364

73 Wn.2d 364

438 P.2d 600

In the Matter of the Welfare of Sandra Lee BOATMAN, a minor.

Carl Frank BOATMAN, Lewis H. Mattix and Bernice Mattix, Petitioners, v. The STATE of Washington, Respondent.

No. 39752.

Supreme Court of Washington, Department 1.

March 14, 1968.

Wm. M. Hamilton of Hamilton, Lynch & Kuntz, Wenatchee, for petitioners.

E. R. Whitmore, Jr., Pros. Atty., David J. Whitmore, Deputy Pros. Atty., Wenatchee, for respondent.

NEILL, Judge.

A writ of certiorari was issued out of this court to review a ruling of the Chelan County Juvenile Court that it has no jurisdiction to consider a petition to change or modify an order permanently depriving a father of parental rights relating to his minor daughter.

In October, 1964, a petition was filed in the Chelan County Superior Court alleging that the 9-month-old daughter of petitioner Carl Frank Boatman and his wife, Diana, was a minor having no parent or guardian willing to exercise, or capable of exercising, proper parental control. A temporary order was entered, adjudging the child to be dependent and a ward of the juvenile court according to the provisions of RCW 13.04.010. At a subsequent hearing, the mother of said child was permanently deprived of all parental rights. As a result of a third hearing, an order was entered March 21, 1966, permanently depriving the petitioner of his parental rights to said child. Custody of the child was given to the state Department of Public Assistance for the purpose of adoption. Although petitioner was incarcerated in the Washington State Reformatory throughout all of the aforementioned proceedings, he was represented by counsel at the hearing which deprived him of parental rights. The testimony of petitioner, however, was not proffered, either by deposition or by motion to transfer the petitioner to Chelan County for the purpose of appearing personally at the hearing.

Petitioner filed a notice of appeal from the permanent deprivation order of March 21, 1966. While such appeal was pending in this court, he petitioned the juvenile court to take further testimony, his own, as he had been released from custody and was furnishing support for the minor child. The juvenile court pointed out to petitioner that it had no jurisdiction to proceed further in the matter because an appeal was then pending before this court; so petitioner dismissed his appeal. The juvenile court thereupon conditionally received the testimony of petitioner, subject to its determining whether or not it had any jurisdiction to further entertain or consider any testimony after entering the order of March 21, 1966. On June 16, 1967, the juvenile court entered its order determining that it had no such jurisdiction and confirmed the prior order of permanent deprivation.

Petitioner assigns as error the ruling that the court had no jurisdiction to hear or entertain further testimony in the juvenile court proceedings.

Petitioner contends that by the terms of RCW 13.04.150, ¹ any and all orders made by the juvenile court affecting a dependent child may be changed, modified or set aside at any time during the wardship and points to our language in In re Ross, 45 Wash.2d 654, 277 P.2d 335 (1954), to support his position. Respondent points out that the order which was the subject matter of In re Ross, supra, was an interim order and not a permanent order of deprivation. Respondent further points to State ex rel. Mead v. Superior Court, 108 Wash. 636, 185 P. 628 (1919), for the proposition that it is left to the discretion of the juvenile court as to who may petition the court for modification and under what circumstances such petition will be heard. Respondent thus concludes that the juvenile judge herein was acting within his prerogative in refusing to consider petitioner's proffered testimony. We think it clear from a reading of the order entered on June 16, 1967, by the juvenile court that its refusal to consider the testimony of petitioner was not based on its exercise of discretion, but was based on its belief that it had no power or jurisdiction to consider the matter further.

Respondent argues, however, that irrespective of the language of RCW 13.04.150 the order entered on March 21, 1966, was a final order depriving petitioner of his parental rights to the minor child; that the dependency of the minor was previously determined by the court and not modified; and that since the March 21 order was final it was subject only to motion to vacate or modify under RCW 4.72.010.

We have reviewed our prior decisions involving the juvenile court's jurisdiction and its power to modify or set aside its orders. The following rules may be derived therefrom:

(1) The status of a minor as a ward of the state and the juvenile court's power over such minor, being based on the juvenile court's finding that he or she is a dependent or delinquent child, cannot be terminated except on a finding that the minor is no longer dependent or delinquent. In re Jones, 41 Wash.2d 764, 252 P.2d 284 (1953); In re Walker, 43 Wash.2d 710, 263 P.2d 956 (1953).

(2) Once a minor is found to be dependent and thus made a ward of the state, the minor is subject to the continuing jurisdiction of the juvenile court until the child's condition of dependency ceases. In re Chartrand, 103 Wash. 36, 173 P. 728 (1918); State ex rel. De Bit v. Superior Court, 103 Wash. 183, 173 P. 1014 (1918); In re Walker, supra; State v. Speer, 36 Wash.2d 15, 216 P.2d 203 (1950); In re Parker, 49 Wash.2d 104, 298 P.2d 520 (1956).

(3) Once a juvenile court, upon a finding of delinquency or dependency, has invoked its jurisdiction over a minor that court has the power to change, modify or set aside its prior orders affecting the minor so long as the minor remains under the continuing jurisdiction of the court. In re Ross, supra; State ex rel. De Bit, supra; In re Parker, supra; RCW 13.04.110 and 13.04.150. With respect to the juvenile court's power to change its orders, neither the statutes nor our decisions make any distinction between temporary or interim orders and final orders permanently depriving custody from, or awarding custody to, interested parties.

(4) Where parties seek to have custody orders modified or set aside, it is discretionary for the juvenile court to inquire into the interest of the parties seeking relief before directing process, which does not issue as a matter of right. State ex rel. Mead, supra.

(5) The best interests of the child is the primary consideration on a petition for the modification of an order regarding the child's custody. In re Parker, supra.

(6) When a juvenile court awards permanent custody of a minor child to a person or agency with authorization for such custodian to consent to the child's adoption, the juvenile court may, in its discretion, completely relinquish its jurisdiction over such child, notwithstanding the Juvenile Court Act provides for continuing jurisdiction. McClain v. Superior Court, 112 Wash. 260, 191 P. 852 (1920). This is not inconsistent with (1) and (2) above as the court may thus determine that the child, now having a proper custodian, is no longer dependent or delinquent.

Applying the foregoing rules to the instant case, it is clear that the juvenile court had the power to modify or set aside its permanent deprivation order of March 21, if the court still had jurisdiction over the child at the time petitioner sought such modification. Stated conversely, if the juvenile court had relinquished its jurisdiction over the child by the March 21 order, then the court had no power to modify that order. Our holding in McClain, supra, is dispositive of this issue. In that case, the juvenile court of Clark County ordered that the child (p. 261, 191 P. p. 853) * * * 'be and hereby is committed to the permanent custody of the Washington Children's Home Society, of Seattle, Wash., and the said society is hereby authorized and empowered to consent to the adoption of the said child by such person or persons as shall, by the said society, be found competent and desirous of so doing.'

Subsequently, a petition for adoption was brought before the Chelan County Superior Court, to which adoption the society...